The hearing is available on video (requires Realplayer). At the suggestion of a reader, I watched the hearing this morning. SB780 was first on the agenda, and that portion of the hearing lasts about 25 minutes.

Several witnesses spoke in favor of the bill. Each of them mentioned at least one instance where a Justice actually did note their dissent to a denial of review under the current system. As I keep writing, I just don’t see how that is an argument that the current system needs to change.

David Chamberlain indicated that he and his clients would like more data to evaluate to help guess which issues most interest the Court.

The policy director of Texas Watch compared the vote to grant or deny a petition to the committee stage of a legislative body, arguing that the public has an equal right to know. (( My knowledge of legislative procedure may be lacking, but aren’t there many bills in the Texas Legislature that die without a formal vote? ))

And former Justice Bob Gammage testified in favor, arguing that the current system not only denies voters information but also robs “potential contributors” of information they need to “cast their resources” most favorably. That argument gave me pause.

The core disagreement was about the proper role of politics in the courts. Proponents tended to argue that having more information could lead to more meaningful political campaigns. Senator Watson suggested the bill would give a tool to those who want to attack what they perceive as special interests on the Court.

The only witness who spoke against the bill was former Texas Supreme Court rules attorney Lee Parsley, an appellate lawyer in Austin. His basic point was that requiring votes to be disclosed would be “taking an already political process and introducing another political element when we should be going the other way.”

Parsley also argued that disclosing all of these votes could add time to the process. Although it’s true that actually counting the votes would take very little additional time, the problem is that the Justices might feel the need to explain in written opinions any votes that might appear controversial. His example was a case with a fascinating, compelling fact pattern that cried out for justice … but where the party had clearly waived the issue. Justices might end up writing short opinions — not for the parties or to clarify the law (since petition denials are not precedential) but for their political audiences.

A question was asked about how long it could really take to write a short little opinion like that. Parsley’s answer was, in essence, that writing 1000 opinions like that could take a long time. I would add another layer of complication — getting Justices to concur with (or disagree with) each other’s short little opinions could lead to even more court time being consumed in what is ultimately a political exercise. (( Here’s a procedural riddle: If six Justices all want to deny review for the same reason and write an opinion to that effect, does that become a binding decision of the Court? I have seen the Texas Supreme Court write an opinion of the Court “denying” review. My reaction was, “What precedential status could such an opinion have?”

In practice, lower courts would likely follow the lead (although they might not strictly have to, even in the same case) and future Texas Supreme Courts would likely reach consistent decisions. But if that future Court disagreed, would it be “overruling” the prior opinion?

We may see more opinions in this interesting sort of limbo if SB780 passes. ))

Senator Watson asked a different question, expressing his view that it would be worth the political costs if exposing these votes led to different decisions in at least some of the marginal cases that come before the Court. His view is that, if a close case gets granted because the votes are made public, that makes the costs worthwhile. He dismissed the idea that this would increase the political polarization, instead arguing that it might shed light on “how political it really is.”

Parsley concluded with a call to remove money from the equation of judicial politics, somewhat echoing how Senator Watson ended his own initial statement with a call to increase public confidence in the courts. Everyone wants some change to the current system. The question seems to be whether it should be through more politics (SB780) or less (judicial appointment and election reform).

1 response so far ↓

I tend to agree with you Don. This bill and others that have preceded it in previous sessions perpetuate the jurisprudential fallacy that a vote to deny review has any precedential effect upon or can even constitute a comment on the merits of the denied intermediate appellate opinion. See, e.g., Loran Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006). The purpose behind both the Court’s initial experiment with discretionary review from 1917-27, as well as its permanent investment with such powers in 1987 was to jurisdictionally allow the Court the ability to only review those cases so important to the jurisprudence of the state that they required correction. See TEX. GOV’T CODE ANN. Â§ 22.001(6) (Vernon 2004). Perhaps this is too fine a juridical point for politicians and political advocacy groups to grasp.

Although you are correct that the jurisprudential effect of any separate writing by a Justice when the Court has expressly declined to invoke its jurisdiction is precedentially null, that has not prevented various intermediate appellate courts from mistakenly citing to dissents from denial of review as precedential authored opinions. See, e.g., Vickery v. Vickery, 999 S.W.2d 342 (Tex. 1999) (Hecht, J., dissenting from denial of review) (cited incorrectly as a majority opinion by the Fifth Circuit Court of Appeals and every Texas intermediate appellate court save for the Eastland Court of Appeals).

I fear this confusion will only worsen if SB 780 passes, and spurs a likely flurry of dissents from denial of review to explain the reasoning behind a given jurisdictional vote. Again, because the reasoning behind a jurisdictional vote has no jurisprudential value and has limited predictive value as compared to the current system, it can therefore only be for political benefit or detriment. And we already have far too much of that in our current judicial system as it is.